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Race & Justice News: Eliminating Crack / Cocaine Sentencing Disparity

July 27, 2021
House Vote on Eliminating Sentencing Disparity Between Crack and Powder Cocaine, a study commissioned by Denver District Attorney finds disparate prosecutorial outcomes, and more in Race & Justice News.

Race and Justice News is a monthly electronic newsletter produced by The Sentencing Project. To receive the newsletter in your inbox, sign up here.


Senate Hearing on Federal Sentencing Disparity Between Crack and Powder Cocaine

In July, the House Judiciary Committee overwhelmingly passed, 36 to 5, the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, which would finally eliminate the federal sentencing disparity between crack and powder cocaine offenses. In a letter to the Committee in support of the EQUAL Act, The Sentencing Project noted that the cocaine sentencing imbalance “exemplifies for many Americans the worst extremes of the 50-year-old War on Drugs and the racial injustice associated with federal mandatory minimums for drug offenses.” The vote came nearly 35 years after the passage of the Anti-Drug Abuse Act of 1986, which fueled mass incarceration and vast racial disparities by imposing the same harsh penalties for one amount of crack cocaine as 100 times the same amount of powder cocaine.

In 2010, The Sentencing Project contributed to the passage of the Fair Sentencing Act, which reduced the cocaine sentencing quantity disparity from 100:1 to 18:1. While this offered a step in the right direction, we raised concerns about the remaining sentencing imbalance as well as the fact that the reforms did not apply to individuals sentenced before the law’s passage. It wasn’t until eight years later that the First Step Act of 2018 retroactively applied the reforms include d in the Fair Sentencing Act to past sentences. In June, President Biden’s Justice Department and Office of National Drug Control Policy submitted testimony for a Senate hearing in support of the EQUAL Act, recognizing the decades-long harm that the cocaine sentencing disparity has imposed on communities of color.


Study Commissioned by Denver District Attorney Finds Disparate Prosecutorial Outcomes

Black and Latinx defendants in the city and county of Denver face significant disadvantages compared to white defendants, the Denver Post reports based on a study commissioned by Denver District Attorney Beth McCann. Conducted by sociologist Stacey Bosick with funding from the University of Denver’s Colorado Evaluation and Action Lab, the study examined administrative data and case files for nearly 6,000 felony cases between 2017 and 2018. The analysis revealed that prosecutors were more likely to have deferred prosecution of white defendants or to have sent them to drug court compared to Black defendants. Additionally, prosecutors were 31% more likely to dismiss the cases of Black defendants compared to white defendants after controlling for factors including case severity and age, suggesting that Black defendants were more likely to face charges that lacked evidence. The study found no racial disparities in plea agreements.

Bosick also interviewed 20 prosecutors, who stated common concerns regarding the overrepresentation of people of color in the criminal legal system but felt limited in their ability to address the disparities. The study’s recommendations for the office include evaluating the rationale and timing of case dismissals and using an equity lens to evaluate eligibility criteria for drug court and sentencing alternatives, such as regarding criminal history and employment status.

How Inequality Harms Attorney-Client Relationships and Case Outcomes

In Privilege and Punishment: How Race and Class Matter in Criminal Court, Stanford University professor Matthew Clair examines how racial and class inequality impacted 63 individuals who were processed in criminal courts in the Boston area between 2015 and 2019. While past research in schools, hospitals, and workplaces led him to expect that privileged people would be assertive in demanding accommodations whereas economically disadvantaged people would be more deferential, his observations and interviews revealed the opposite in the courts. Low-income individuals, especially people of color, “sought to know their legal rights, contest their defense lawyers’ expertise, and advocate for themselves in court,” while middle-class people deferred to their trusted, often privately-hired, lawyers.

These interactional differences compounded disadvantage, as defense attorneys and judges ignored, silenced, or coerced individuals who were non-compliant out of resistance or resignation. “Privileged people were rewarded for their deference whereas the disadvantaged were punished for their resistance and demands for justice,” Clair explains, elaborating on an article in the journal Social Forces. He offers a wide range of recommendations, including encouraging defense attorneys to secure clients’ trust through client-centered representation, giving indigent individuals a choice of defense attorneys and more opportunities to voice their concerns, developing systems of outside accountability and monitoring for courts, and shifting the handling of many social problems—including drug use, mental illness, consenting sex work and homelessness—away from criminal courts and shifting other crimes towards a restorative justice model.


Racial and Ethnic Disparities in Texas Police Stops, Searches, and Arrests

Following the systemic failures that contributed to Sandra Bland’s suicide in Texas’s Waller County Jail in 2015, the state legislature passed the Sandra Bland Act in 2017, one of whose goals is to collect traffic stop data to strengthen the state’s racial profiling law. In their 2020 Racial Profiling Data Analysis for the State of Texas, highlighted by the Austin American-Statesman, researchers at Texas A&M University’s Institute for Predictive Analytics in Criminal Justice examined six million police stops, largely of drivers, in 2020.

They found that although whites make up the state’s largest racial/ethnic group, Latinxs were the most likely to be searched. But police were more likely to find contraband on searched whites than on searched Latinxs. Police were also more likely to arrest both Latinxs and Blacks than whites when discovering contraband. Focusing on stops of motorists, the researchers found that police were more likely to stop Black and white drivers relative to their share of the state population, and less likely to stop Latinx drivers. The researchers note that while police agencies have improved their reporting, many agencies failed to report reliable race and ethnicity data.

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